How Much Does the Individual Mandate Case Matter?

Co-blogger Orin Kerr asks an important question. How much effect will the individual mandate decision really have? To some extent, we can’t really know. It depends in part on the Supreme Court’s reasoning in upholding or striking down the mandate, and also on future political developments, including who gets to make the next several appointments to the Court. Still, I think a few tentative thoughts are in order. In some ways, Orin is right that the decision will probably not have as much effect as avid partisans claim. Nonetheless, it could well have an important impact both legally and politically.

I. The Legal Impact.

On the legal side, claims that a decision striking down the mandate would somehow restore Lochner v. New York are wildly overblown. Only slightly less implausible are assertions that it would lead to anything resembling a full-blown return to pre-New Deal federalism doctrine. If the Court strikes down the mandate, it probably will not even reverse the most extreme recent Commerce Clause cases, such as Gonzalez v. Raich, much less major New Deal-era cases such as Wickard v. Filburn. Instead, the Court would most likely distinguish Raich, perhaps on grounds similar to those I outlined here. I would love to see a decision overruling or severely limiting Raich. But the votes simply aren’t there for it so long as Raich majority members Scalia and Kennedy are still on the Court.

The legal impact of a decision upholding the mandate would be more difficult to confine. The federal government has presented a variety of arguments claiming that the health insurance mandate is a special case. If the Court upholds the mandate, we will probably get a majority opinion endorsing one or more of these “health care is special” contentions. The problem is that all of them can be used to justify virtually any other mandate as well, as I describe in detail in this article, and here. It’s possible that the justices will come up with a novel health care is special rationale that doesn’t suffer from these defects. But I am skeptical. It’ striking that after two years of effort by numerous outstanding pro-mandate lawyers and academics, the most commonly deployed health care is special argument remains the deeply flawed claim that it’s special because everyone uses health care.

Orin suggests that this may not matter much because few if any federal mandates will be enacted due to their unpopularity. Obviously, Congress is not going to enact every conceivable harmful mandate. But, for reasons I outlined here, a variety of mandates will be politically viable because they are popular, because rationally ignorant voters are unaware of them, because of interest group lobbying, or some combination of all three. For these reasons, the slippery slope case against the mandate is not purely hypothetical. Consider a parallel federal power to censor whatever speech Congress wants. If the Court ever endorses such a power, we are not going to get an Orwellian nightmare where all dissenting speech is forbidden. But Congress is likely to start censoring some speech that is unpopular, inimical to powerful interest groups, or both.

II. Potential Broader Effects.

Going beyond the legal issues, the broader long-term effect of the mandate case is much harder to predict. Orin may be right that the anti-mandate litigation has reinvigorated interest in constitutional limits on federal power, especially among conservative Republicans. On the other hand, the GOP is often guilty of “fair weather federalism,” as we saw many times in the Bush years. When and if a Republican president and Congress return to power, many Republicans may well conveniently ignore the principles they advocated in this case. This is especially likely if the mandate is upheld. In that event, they might reason that if liberal Democrats can claim the benefits of unconstrained federal power and the Court doesn’t stop them, Republicans should not engage in “unilateral disarmament” by restraining themselves when they are in the driver’s seat in Washington. Such a view may be unprincipled. But political partisans are all too likely to fall prey to it.

That said, I too do not believe that everyone will simply go back to “business as usual” after this case. As public opinion polls repeatedly show, the view that the mandate is unconstitutional is endorsed by a large majority of the population, not just libertarians and conservative Republicans. That may in time translate into broader awareness of the need to enforce constitutional limits on federal power. A victory for the anti-mandate plaintiffs would also be an important milestone for longstanding efforts to return the idea of judicial enforcement of federalism to intellectual respectability among jurists and other legal elites. The fact that there was no expert consensus on the constitutionality of the mandate is itself significant, and certainly came as an unpleasant surprise to many of the mandate’s defenders.

Finally, as Orin recognizes, the mandate case is also important because the law it addresses is significant in its own right. Even if the Court’s decision has no implications for future cases, it will still determine the fate of a crucial element of one of the most significant new federal health care law in decades. If the Court decides the mandate is not severable, it could take down some or all of the rest of Obamacare as well.

Orin speculates that Congress might repeal the individual mandate even if the Court does not strike it down. That certainly could happen. But such an outcome becomes less and less likely the longer the mandate stays on the books, and the more health insurance firms and other interest groups become dependent on it. Interest group pressure could well keep the mandate in place, despite its unpopularity, especially as public attention moves on to other issues. We should recall that the mandate’s unpopularity was not enough to keep it from getting enacted in the first place, with the support of a president who once denounced the idea as the equivalent of trying “to solve homelessness by mandating everybody to buy a house.” It may not be enough to get it repealed either.